SHOUQ Pty Ltd (Migration)

[2021] AATA 3156

SHOUQ Pty Ltd (Migration) [2021] AATA 3156 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SHOUQ Pty Ltd

CASE NUMBER:  1828419

HOME AFFAIRS REFERENCE(S):          BCC2017/2345943

MEMBER:Nicola Findson

DATE:12 August 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 12 August 2021 at 4:58pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – no evidence of labour market testing included with application – evidence provided to department later – genuine position – no response to tribunal’s invitation to provide updated and current information –decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASE
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 September 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (Cth) (the Act) and r.2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 30 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.140GB(2), which required the applicant to have satisfied the labour market testing requirements in s.140GBA of the Act, unless exempt from having to do so. The delegate found that the applicant was not exempt from having to satisfy the s.140GBA labour market testing requirements. Subsection 140GBA(3)(b)(i) required that the labour market testing requirement was satisfied if the nomination was accompanied by evidence that the required labour market testing had been undertaken. Subsection 140GBA(5) required that the required evidence must include information about the applicant’s attempts to recruit suitably qualified and experienced Australian citizens or permanent residents to the nominated position and any other similar positions. Subsection 140GBA(6) specified that such information must include details of any advertising (paid or unpaid) of the position (and any similar positions) commissioned or authorised by the approved sponsor, and fees and other expenses paid (or payable) for that advertising.

4. The delegate found that the applicant stated in its nomination application that labour market testing had been undertaken, but did not include evidence or information about its attempts to recruit suitably qualified and experienced Australian citizens or permanent residents to that position, or any similar positions, at the time that the application was made. The delegate found that s.140GBA(3) was not met in this case. It was therefore unnecessary for the delegate to assess whether the prescribed criteria in r.2.72 were met.

5. The applicant applied to the Tribunal for review of the Department’s decision on 27 September 2018, and with the application provided a copy of the delegate’s decision record.

6. During the review process, on 18 April 2019, the applicant, via its registered migration agent, provided to the Tribunal a written submission, with supporting documents attached.  It is submitted:

   ·The applicant provided evidence and information to its previous migration agent about its attempt to recruit suitably qualified and experienced Australian citizens or permanent residents to the nominated position;

   ·The labour market testing began on 29 April 2017, for one month, during which the position was advertised on Gumtree; 

   ·The nomination was lodged with the Department on 30 June 2017, and the applicant understood the evidence and information about its labour market testing had accompanied the nomination application;

   ·The applicant discovered after its nomination was refused that its previous agent had failed to provide the relevant labour market testing evidence in a timely manner.  It was discovered that evidence of advertising the nominated position was uploaded to its Immi Account on 6 July 2017 and 25 May 2018 – one week and one year after the nomination application was lodged.

7. The attached documents included a screenshot of an advertisement for the position of Cook lodged by the applicant on Gumtree in April 2017, and a statement of the Director of the applicant business, Mr David Yeo, which sets out that efforts to hire an Australian worker for the position had been unsuccessful and that but for the negligence of the applicant’s previous migration agent, evidence and information about this labour market testing would have been provided to the Department at the time of its nomination application.

8. On 18 June 2021, the Tribunal wrote to the review applicant, via its registered migration agent, pursuant to s.359(2) of the Act, inviting the review applicant to provide updated and current information about the various requirements in r.2.72 of the Regulations and s.140GB of the Act. The Tribunal’s letter noted that a business nomination application made before 17 January 2018 must comply with inapplicability conditions (also known as a caveat) in IMMI 17/060, and sought information about why, if applicable in the circumstances of this case, the relevant caveat did not apply. The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.2.72 and s.140GB are met at the time of its decision.

9. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 2 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The review applicant has not provided the information within the prescribed period and no extensions have been requested or granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

12. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2).

14. The Tribunal’s letter to the applicant of 18 June 2021 invited the applicant to provide updated and current information about all the relevant requirements in r.2.72 and s.140GB. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the Tribunal’s invitation and no updated and current information about the applicant or its business has been received. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination as a Standard Business Sponsor.

15. Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. Further, r 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

16. In this case, the nominated position is a Cook (ANZSCO 351411). According to IMMI 17/060 this occupation is not applicable where the nominated position is involved in mass production in a factory setting.  Nor is the occupation applicable in a limited service restaurant, which includes: a fast food or takeaway food service; a fast casual restaurant; a drinking establishment that offers only a limited food service; a limited service café, including a coffee shop or mall café; and a limited service pizza restaurant. 

17. The material provided to the Department by the applicant indicates that the nominated position is to be based in the applicant’s business, Duotone Café. The information indicates: the kitchen of the cafe operates between 6:30am and 1:30pm each day; the café offers a limited breakfast and beverage menu; and the cafe does not take reservations. Based on this material, the Tribunal is of the view that the nominated position is in a limited service restaurant, and therefore, falls within a caveat of IMMIS 17/060, which precludes it from being approved for the purposes of r.2.72(10)aa.

18. The Tribunal invited the applicant to provide updated and current information about a range of matters, including the roles and duties of the nominated position, how they correspond to the position description in ANZSCO, where the nominated position sits within the organisation structure of the business, and their current financial circumstances. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide included: job descriptions; work samples; emails; correspondence and other examples of the daily tasks performed in the nominated position; the ANZSCO description of the nominated occupation; an organisational structure chart including all current and proposed employees, their position title/duties and their immigration status; lodged tax returns for the last two financial years; business activity statements lodged with the ATO in the last 24 months; and financial statements showing profit and loss statements and balance sheets for the most recent two years. Further, if, as in this case, the nominated occupation was subject to an inapplicability condition, information about why the caveat does not apply in their circumstances.  No response has been received to the invitation to provide information.

19. The applicant has not provided current information about the roles and duties of the nominated position or how they correspond to the nominated occupation’s position description in ANZSCO. Nor have they provided information relevant to the inapplicability conditions specified in IMMI 17/060 and described above. In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and that the occupation is applicable to the person identified in the nomination in accordance with the instrument. Accordingly, the requirements in r.2.72(10)(aa) are not met.

20. Further, as the applicant has not provided updated and current information about the nominated position, the structure of the business and the financial circumstances of the applicant. In these circumstances, the Tribunal is unable to be satisfied, at the time of its decision, that the position associated with the nominated occupation is genuine. Accordingly, the requirements in r.2.72(10)(f) are also not met.

21. For the reasons given above, the Tribunal is not satisfied that the applicant meets the r.2.72(10) and is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to approve the nomination

    Nicola Findson
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.